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Flynn v. FCA U.S. LLC

United States District Court, S.D. Illinois

October 2, 2019

BRIAN FLYNN, GEORGE BROWN, KELLY BROWN, and MICHAEL KEITH, on behalf of themselves and all others similarly situated, Plaintiffs,
FCA U.S. LLC, f/k/a Chrysler Group LLC and HARMAN INTERNATIONAL INDUSTRIES, INC., Defendants.


          Hon. Reona J. Daly United States Magistrate Judge

         Discovery dispute conferences were held in this matter on July 25, 2019 and August 22, 2019. During the conferences, the Court addressed various disputes brought by both Plaintiffs and Defendant FCA U.S. LLC (“FCA”). The parties submitted brief summaries of the disputes ahead of the conferences. Familiarity with the background of this case is presumed[1] and the Court's orders are set forth below.


         1. Purported Flaws in FCA's Document Production

          Plaintiffs contend Defendant FCA's document production is materially incomplete because FCA has applied an “exceedingly narrow definition of relevant” in an effort to justify withholding critical documents. In support of their position, Plaintiffs submitted various documents that were recently produced by FCA pursuant to this Court's April 18, 2019 Order (see Doc. 486) that they assert should have been produced years ago. For example, Plaintiffs refer to PowerPoint presentations authored by Meg Novacek (the original supervisor of FCA's Global Vehicle Cybersecurity Group (“GCVS”)) that address cybersecurity issues, including FCA's knowledge of hackers' ability to take control of certain mechanisms in the Affected Vehicles.

         Plaintiffs assert there are approximately 130 documents that had not been produced previously despite containing one or more ESI search terms. FCA contends that of the documents Plaintiffs argue should have been produced, 91 did not hit on a search string or hit on a search string and were previously produced. Twenty-two of the documents that hit on a search string were duplicates.

         FCA asserts there was no intentional withholding of documents and any documents that were recently produced that included search terms had been deemed not relevant. FCA explains that the documents Plaintiffs cite discuss future technologies, were forward looking, and were only produced in compliance with the Court's Order as they discussed “other manufacturers' cybersecurity.” FCA maintains it has produced any documents that address the Affected Vehicles and cybersecurity practices at the time the Affected Vehicles were sold. The Affected Vehicles were last manufactured in July 2015.

         Pursuant to Federal Rule of Civil Procedure 26(b)(1), parties are only entitled to discovery of nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. The Supreme Court has cautioned that the requirement under Rule 26(b)(1) that the material sought in discovery be “relevant” should be firmly applied, and the district courts should not neglect their power to restrict discovery where necessary. Herbert v. Lando, 441 U.S. 153, 177 (1979); see also Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003). However, “relevancy” for discovery purposes is construed broadly to encompass matters that bear on, or reasonably could lead to other matters that could bear on, any issue in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). “Relevance is not inherent in any item of evidence, but exists only as a relation between an item of evidence and the matter properly provable in the case.” Miller UK Ltd. v. Caterpillar, Inc., 17 F.Supp.3d 711, 722 (N.D. Ill. Jan. 6, 2014) (citation omitted). Based on a review of the documents cited by Plaintiffs, the Court does not find evidence of any systemic or marked issue with FCA's document production and relevancy review to warrant the relief Plaintiffs seek - the production of all documents previously withheld on the basis of relevancy for review by Plaintiffs. The pending claims do not concern actions taken by FCA in their production of vehicles after July 2015. Indeed, the claims center on the merchantability of the vehicles at issue at the time of sale, as well as FCA's merchandising of those vehicles. There are limits to relevancy in discovery, and the Court finds the limits applied in this case to be appropriate in light of the dictates of Rule 26(b)(1). Plaintiffs' request that FCA be ordered to produce all responsive, non-privileged documents is DENIED.

         2. Bug Bounty Program

         Plaintiffs explain they issued a series of requests for production of documents related to FCA's “bug bounty” program that was implemented in 2017. Specifically, Plaintiffs seek documents concerning the terms of the program, submissions related to the Affected Vehicles, and payouts from the program relating to the Affected Vehicles at issue in this case. FCA contends it has produced all of the documents requested.

         Plaintiffs assert, however, that they also sought “communications regarding consideration of the establishment of the bug bounty program, ” that FCA refuses to produce. FCA did not produce these documents because Plaintiffs' request was not limited to the vehicles, components, or timeframe reasonably at issue and such production would be disproportional to the needs of this case. Plaintiffs assert such documents are relevant to their position that the defects in the Affected Vehicles are largely attributable to FCA's attempts to cut costs, including irresponsible failures to invest in the type of internal group with responsibility for product cybersecurity that is universally considered essential. Plaintiffs posit that documents concerning the establishment of the “bug bounty” program would likely address whether FCA believed it could “outsource” functions that should have been handled internally.

         Plaintiffs' request to compel the production of such documents is DENIED. The documents Plaintiffs seek are beyond the scope allowed under Federal Rule of Civil Procedure 26(b)(1). Indeed, although the documents concerning the implementation of the “bug bounty” program may have some relevance to the claims or defenses in this case, any such relevance is minimal and only tangentially related to the issues being litigated, and certainly not proportional to the needs of this case.

         3. Survey Documents

         In this Court's April 18, 2019 Order, FCA was directed to produce consumer survey information addressing the importance of safety to consumers or potential purchasers by May 3, 2019, in response to certain requests for production of documents. Plaintiffs assert that FCA produced a single, 16-page PowerPoint presentation discussing one survey FCA conducted. Plaintiffs contend Meg Novacek testified in her July 18, 2019 deposition that it is her understanding FCA has an internal group dedicated to performing surveys and market research and that those surveys often addressed features relating to safety.

         FCA contends it produced all survey documents that could be located that related to cybersecurity or safety for the vehicles at issue. FCA explains it searched general survey information in the timeframe the vehicles at issue were being manufactured and sold and produced the relevant documents in its possession. FCA explains it does not have raw survey data in its possession related to the survey PowerPoint presentation it produced. FCA also explained surveys are typically conducted in relation to features and consumer preferences.

         Although the Court is mindful of Plaintiff's position, it finds that Plaintiffs have based their request for additional survey information on speculation. Novacek's testimony, wherein she spoke generally about FCA's performance of surveys and market research, does not substantiate Plaintiffs' claims that there are relevant documents being withheld by FCA. Because “[c]ourts need not authorize additional discovery based on nothing more than ‘mere speculation' that would ‘amount to a fishing expedition', ” Illinois Extension Pipeline Co., LLC v. Thomas, No. 15-3052, 2016 WL 1259379, at *5 (C.D. Ill. Mar. 1, 2016) (citing Davis v. G.N. Mortgage Co., 396 F.3d 869, 885 (7th Cir. 2005)), the Court DENIES Plaintiff's request to compel additional survey information.

         4. Documents and Video relating to SwRI's “Whole Vehicle” Penetration Testing

          Plaintiffs ask the Court to order FCA to produce the following categories of documents relating to the “whole vehicle penetration ...

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